Progressive Constitutional Theory

Kenneth Townsend

Does an active and progressive national government require liberal constitutional theorists to articulate and then advocate a comprehensively liberal theory of constitutional law? “No” seemed to be the answer offered by the Constitutional Theory panel at the recent Constitution 2020 conference at the Yale Law School.

Video courtesy of Yale Law School.

For the budding constitutional theorists among us, Jamal Green’s opening comments provide a word of caution. Since the role of constitutional theorists “is actually quite narrow,” Green claimed that progressives should not worry too much about trying to convince judges to adopt liberal modes of constitutional interpretation. Contrary to popular belief, Green suggested that originalism, the right’s preferred model of constitutional interpretation, has not actually accomplished as much as its proponents or opponents think. Rather, it has simply served as a handy rhetorical device the right has used to buttress the work that is done in the political sphere. Since the left does not have anything as rhetorically useful, progressives should focus primarily on creating a progressive constitutional discourse from which liberal jurists can draw as opportunities arise.

Sophia Lee also suggested in her comments that being ambitious is not always the best way to bring about progressive change. Administrative agencies, in particular, offer opportunities for accomplishing progressive objectives in ways that are often ignored. If our goal as progressives is to see progressive change, how much does it matter the manner in which that change takes place? Lee’s argument is not simply one of pragmatism, though – since she believes that administrative agencies are actually more competent to sort through certain civil rights questions.

Richard Primus offered a warning to progressive constitutional theorists who neglect the importance of professional role differentiation. Political and legal movements are most effective when they are rooted in an “ethical history” that resonates with a national ethos. This ethical history is effective because it provides a simple framework into which particular principles can be fit. It traffics in normative values, unlike the disinterested form of history that social scientists use to explain and describe. Since constitutional experts are often historians and theorists, scholars as well as activists, they face the difficult task of balancing political influence and academic integrity. At the end of the day, scholars must acknowledge their normative commitments but also be very wary of using history simply to buttress a politically useful narrative, according to Primus.

David Law, the last of the four panelists to speak, was perhaps the one least enthralled with those who “fetishize” the constitution and most frustrated by those who see the constitution as some substantive embodiment of a national narrative, rather than simply a technical tool for accomplishing certain policies. As Law argued, to spend time discussing abstract problems such as the counter-majoritarian difficulty might be intellectually rewarding for a small cadre of constitutional theorists, but it is too many steps removed from the day-to-day processes of constitutional practice to be of much practical worth.

Picking up on the panelists’ preference for modesty, moderator Paul Kahn used his time to question the “theoretical minimalism” that characterizes the pieces in the Constitution 2020 book and the presentations of the Constitutional Theory panelists. Gone are Bickel and Ely. Missing are “veils of ignorance,” Herculean judges, and “ideal speech situations.” In their place we find those who focus on the particular rather than the general and those who advocate change on technocratic rather than philosophical grounds. Kahn, it seemed, was not entirely comfortable with this trend in constitutional theory.

Questions in the audience picked up on some of Kahn’s observations and touched on other important relevant questions. One audience member asked if constitutional theorists’ theoretical minimalism was the product of a growing recognition that comprehensive theories and histories inevitably leave out certain groups and particular narratives. Another suggested that certain ethical histories were simply truer than others and that constitutional scholars have an obligation to cite the right history. Yet another asked if we should try to understand “truth” as primarily rhetorical.

The panelists fielded many tough questions, but others remain. For constitutional theorists who value bridging theory and practice, how should we mark where one begins and the other ends? And might it be the case that constitutional scholars do in fact have more influence than the panel suggested? Could it be that disclaiming influence represents an effort to avoid responsibility for some of the struggles of liberal politics and constitutionalism during the last generation?